Bryan Stark (Pseudonym) v The Queen - [2015] HCASL 193

BRYAN STARK (PSEUDONYM)
v
THE QUEEN
[2015] HCASL 193
M16/2015

The applicant was convicted following trial in the County Court of Victoria (Judge Douglas) of sexual offences committed against a child under the age of 16 years.
The applicant appealed to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich JA and T Forrest AJA) against his conviction. The appeal was dismissed on 1 March 2013.
The applicant now seeks special leave to appeal from the orders of the Court of Appeal. He requires a very substantial enlargement of time in which to file the application[1]. No satisfactory explanation for the delay of two years is provided.
[1]High Court Rules 2004 (Cth), r 41.02.1.
The applicant contends that the Court of Appeal erred in law in concluding that three previous representations made by the complainant were admissible pursuant to s 377 of the Criminal Procedure Act 2009 (Vic) ("the CPA") and s 66(2) of the Evidence Act 2008 (Vic) and in concluding that a submission made by the prosecutor in closing address did not breach the rule in Browne v Dunn (1893) 6 R 67.
Consideration of the possible application of s 66(2A) of the Evidence Act by the trial judge and the Court of Appeal was strictly unnecessary in circumstances in which each was satisfied that evidence of the previous representations was admissible under s 377 of the CPA. This provision applies in a criminal proceeding relating to a charge for a sexual offence if the complainant is under the age of 18 years and is available to give evidence. The burden of the applicant's complaint is with the conclusion that the evidence was "sufficiently probative" for the purposes of s 377. No question of principle is raised by this ground or by the second proposed ground, which challenges the Court of Appeal's conclusion that the requirements of fairness were met by the prosecutor's cross-examination of the applicant. If special leave to appeal were granted the appeal would have insufficient prospects of success.
The application is dismissed.
Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
4 November 2015 S.J. Gageler

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 193
Decision Date

CaseChat Overview and Summary

Bryan Stark, the applicant, appeals against his conviction for sexual offences against a child under 16 years, which was upheld by the Court of Appeal of the Supreme Court of Victoria. The applicant seeks special leave to appeal from the orders of the Court of Appeal. The primary legal issues revolve around the admissibility of certain evidence under the Criminal Procedure Act 2009 (Vic) and the Evidence Act 2008 (Vic), and whether a submission made by the prosecutor breached the rule in Browne v Dunn. The applicant argues that the Court of Appeal erred in admitting evidence of three previous representations made by the complainant and in not considering the application of s 66(2A) of the Evidence Act. The Court of Appeal concluded that the evidence was sufficiently probative under s 377 of the CPA, and that the prosecutor's conduct during cross-examination was fair.

The High Court found that the applicant’s appeal had insufficient prospects of success. The Court was satisfied that the evidence of the complainant’s previous representations was admissible under s 377 of the CPA, and that no question of principle was raised by the applicant's grounds of appeal. The High Court held that the Court of Appeal had correctly applied the relevant statutory provisions, and that the consideration of s 66(2A) of the Evidence Act was unnecessary. Furthermore, the Court found that the prosecutor's conduct did not breach the rule in Browne v Dunn. The substantial delay in filing the application for special leave was not satisfactorily explained, which also contributed to the dismissal of the application.

The High Court dismissed the application for special leave to appeal. Pursuant to r 41.11.1 of the High Court Rules 2004 (Cth), the Registrar was directed to draw up, sign and seal an order dismissing the application. This decision was rendered by Justice Bell on 4 November 2015.

Orders